Sunday, February 14, 2016

Not only is the political slant of the Justices irrelevant, so is the entire Court and the central state it represents.

With the passing of Justice Scalia, the media has embarked on a frenzy of speculation about the political battles that are part and parcel of the President nominating a replacement Supreme Court justice.

While the political chum makes for good copy, the bigger question is rarely (if ever) asked: is the Supreme Court even relevant to the truly significant issues facing the nation?

The conventional view is that the Supreme Court of the United States (SCOTUS) is always relevant, for the obvious reason that it provides the ultimate interpretation of the law of the land.

But this simplistic view overlooks long periods in the nation's history when the Supreme Court was largely irrelevant to the pressing issues of the era. In some periods, the Court rubberstamped a Status Quo in desperate need of profound political reform.

For example, the current court's ruling in Citizens United vs. FEC allows unlimited election spending by individuals and corporations--effectively distorting (or in an unvarnished word, destroying) democracy as a functioning institution.

In other eras, the key issues were not decidable by court cases or jurisprudence.

Consider the current era. the conventional view holds that social rights and prohibitions (the legalization of marijuana, transgender rights, etc.) are the key issues of the day.

Social rights and prohibitions are entirely decided by laws passed and court rulings on the inevitable legal challenges.

But what if the truly key issues of the day are economic and financial? Precisely what leverage does the Supreme Court have over multi-causal, intertwined issues such as rising wealth inequality or rising economic insecurity?

These issues are not decidable by a Supreme Court ruling or by Congress passing another 1,000-page statute. Not only are the causes not resolvable by granting more rights--the issues cannot be resolved with top-down central state decisions.

As for everybody's favorite "fix" to rising inequality, taxing the rich: any tax code can be circumvented by lobbying and campaign contributions by those with sufficient wealth.

The larger question goes unasked because it doesn't have an easy answer: how can the central state (federal government) legislate wealth equality? What section of the Constitution empowers the State to gerrymander equality of wealth and income?

What if rising inequality is a consequence of bottom-up forces such as globalization and automation rather than a top-down issue that can be resolved with a new court ruling? Will the Supreme Court be able to "fix" issues as complex as globalization and automation? How?

By granting the central state the power to prohibit globalization and automation? Given the complexity and nearly infinite variety of these large-scale forces, is this even possible, even if it was supposedly legal?

The Supreme Court, and indeed, the entire top-down edifice of central bank/state power is increasingly irrelevant to the truly fundamental forces defining this era-- forces of financialization, resource depletion, debt, globalization, automation and the power-law distribution of rewards for innovations in a knowledge-based economy.

The Court's supposed relevance is simply another illusion of a Status Quo that is itself increasingly irrelevant. Everyone looking for "solutions" from centralized state powers is looking in the wrong place. The state can issue another 100,000 pages of statutes and the Court can hand down a hundred more nuanced interpretations of the law, and nothing of any real importance will change.

Not only is the political slant of the Justices irrelevant, so is the entire Court and the central state it represents. Solutions will be bottom-up and distributed from now on, not centralized and top-down.

The Court is just another media circus of irrelevance, issuing rulings on social issues while the economic foundation of the nation and state are shifting in profound and largely uncontrollable ways.

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